Legal Action Is Not the Solution to Improving Nursing Homes’ Response to COVID

October 20, 2020

Long-term care providers have waged a long and hard-fought battle against COVID-19. Even in the most challenging of circumstances, hundreds of thousands of men and women on the front lines have put themselves in harm’s way to protect millions of our nation’s seniors. Because of their heroic deeds, many lives have been saved from this vicious virus.

The people in our care are our most vulnerable. The risk of mortality among older Americans as it pertains to COVID-19 is up to 630 times higher than for those ages 18-29. Our residents’ need for around-the-clock care is a constant reminder of how susceptible they are to the virus.

In addition to caring for those who are among the most at risk, long-term care providers faced a myriad of challenges as they tried to gain control of the virus early on. Delayed reinforcements in the form of testing and personal protective equipment from federal and state governments forced providers to respond to this global health crisis with one arm tied behind their backs.

Resources such as gowns, gloves and N95 masks were in short supply, leaving residents and staff needlessly exposed. Problems surrounding testing abounded, including prohibitive costs and significant lag times in receiving results. Pre-pandemic staffing shortages worsened as caregivers were forced to miss work to care for family members or because they contracted the illness in the line of duty.

The combination of these factors is what led to the disproportionate death toll among long-term care facilities. Deaths in nursing homes and assisted living communities have accounted for 40 percent of total U.S. deaths despite being only 8 percent of total cases.

From the very beginning, long-term care providers never wavered from their commitment to deliver the highest quality of care. As soon as the virus struck, providers took swift action and implemented rigorous infection control processes and procedures in order to mitigate the risk.

Despite the unprecedented steps providers took to rein in the virus, tragedies occurred. The widespread outbreak at Washington State’s Life Care Center of Kirkland became a focal point early in the crisis. As the number of cases and deaths climbed, questions were raised as to LCCK’s standard of care and whether the facility failed to respond to the outbreak in the appropriate manner.

A recent decision by State Administrative Law Judge Matt Perkins confirms that LCCK took every necessary precaution to prevent the spread of the virus. The facility followed public health guidelines and it’s clear that much of the early reporting and commentary lacked facts and context. Perkins’ decision proves that officials in the long-term care facility adhered to protocols and did everything in their power to protect residents from the vicious virus.

What unfolded in Washington state demonstrates that pursuing legal action and imposing monetary penalties against long-term care providers, particularly in a crisis, is not a remedy to improve the overall quality of care. Instead, these actions oftentimes fail to account for the entirety of what unfolded in a particular facility. Furthermore, they tie the hands of essential personnel and redirect critical resources away from where they are needed most.

Defeating COVID-19 and strengthening the long-term care sector requires a collective effort from providers, public health officials and lawmakers. We must have an honest and open discussion about how to ensure that long-term care residents and staff are a public health priority. Instead of pointing fingers, let’s acknowledge our challenges and begin to fortify areas such as workforce recruitment, training and retention, as well as Medicaid reimbursement policies which leave facilities under-resourced hurting both residents and caregivers.

Chronic Medicaid underfunding threatens our viability. For years we have called attention to this perennial gap in funding, and now in light of COVID-19, this problem has been magnified. The cost to keep the virus at bay has put enormous strain on budgets that were already stretched thin. Policymakers must ensure that long-term care facilities have stable financial footing to continue delivering the high-quality care that our residents depend on.

We know that we can achieve positive outcomes when we are working together toward the same goal. Although assistance was slow to start, we have been able to turn the tide on the virus because federal and state governments have stepped in. We have an opportunity to build upon the progress we’ve made to make substantive reforms that will have long-term effects on our sector.

There are lessons to be learned from the events that have transpired over the past seven months. Now it’s time to roll up our sleeves and get to work. Together, we can create a better future for our seniors and caregivers.

Mark Parkinson is the president and CEO of the American Health Care Association and previously served as governor of Kansas.

Originally published in Morning Consult.